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“Murder most foul”: The right to life investigating homicide

In what circumstances is a criminal trial not sufficient to discharge the State’s duties under Article 2, the right to life, towards a victim of murder? The High Court held last week in this tragic case that a Coroner unlawfully and unreasonably decided not to resume an inquest into the death of a teenage girl where her killer had been ruled unfit to plead at the Old Bailey and handed an indefinite hospital order.

The right to life, protected by Article 2 of the ECHR, has been the subject of several major cases over the past few years, both in the UK courts and in Strasbourg, relating to the extent of the State’s duty to investigate someone’s death. In particular, the courts have emphasised and extended bit by bit the need for a proper examination of the circumstances of a death which occurs whilst a person is in custody, in a mental health institution or otherwise within the State’s care or control.

We have covered two important (and very recent) decisions involving such situations here and here. This case, however, concerned a different and more unusual set of facts, where the questions that arose centred on whether the police had done enough to prevent the murder of a young girl who had reported death threats made against her by an older man.

Stabbed to death

Around 3.30pm on 2 June 2008 Thomas Nugesse, a 21-year-old man, stabbed to death Arsema Dawitt, a 15-year-old girl. Two months earlier he had assaulted Arsema and five weeks earlier Arsema and her mother had gone to the police to report that he had threatened to kill her. Nugesse handed himself into the police and was remanded in custody. On 5 June 2008 the District Coroner opened an inquest into Arsema’s death and adjourned it pending the criminal investigation and proceedings. On 25 June 2008 Nugesse was found hanging in his cell having suffered serious brain damage. On 19 May 2009 he was ruled unfit to plead. On 20 May the jury heard evidence and concluded that he had deliberately and unlawfully killed Arsema. An indefinite hospital order was imposed.

The Coroner, having been informed of the outcome of the criminal proceedings, decided not to resume the inquest. The Claimant, Arsema’s mother, made a complaint against the Metropolitan Police and in November 2009 the IPCC produced a critical report which concluded that “the messages and information given by the family…were not sufficiently acted upon“. The Claimant asked the Coroner to reconsider her decision not to resume the inquest, but the Coroner refused, giving the following reasons:

“I find that whilst there were failures in the way the police dealt with the allegation, as described in the report, there was nothing that they knew or ought to have known of a real or immediate risk to Miss Dawitt’s life. The threats made appeared to have been made across the telephone rather than face to face, the assault was a “slap” which was later denied by Arsema when interviewed by the police School Liaison Officer. She also denied that she was being harassed. The report had been made 14 or 15 days after the alleged assault, and there was nothing to indicate that Arsema thought he would carry out his threats. The CRIS [crime report] indicated that she only wanted him “warned”. Further there was no other intelligence or risk assessment to indicate any real or immediate risk posed by Thomas Nugesse to Arsema Dawit’s life.“

The law

Inquests can be resumed after criminal proceedings if, in the Coroner’s opinion, there is ‘sufficient cause’ to do so. The State’s investigative duty under Article 2 – which requires a wider investigation than a normal inquest – arises where the State arguably breached its substantive obligations under Article 2 and other proceedings have not satisfied the requirements for an independent investigation.

One aspect of the State’s substantive obligations under Article 2 is that it must take preventative measures to protect an individual whose life is at risk from the criminal acts of another. This duty arises where the authorities knew or ought to have known at the time of the existence of a “real and immediate risk to life.”

The decision

The Claimant argued that the Coroner’s decision not to re-open the inquest was unreasonable or wrong in law because there was sufficient cause to resume. She argued that there had arguably been a real and immediate risk to life, that the police had failed to take reasonable measures which would have avoided that risk, and that the criminal proceedings and IPCC report had not properly investigated this.

Silber J agreed, holding that there was “ample evidence to justify a credible and deeply worrying threat to kill Arsema“. Dealing with the reasons given by the Coroner, he considered that:

“…as to factor (i), the potency of a threat does and could not depend on whether it is made face-to-face rather than on the phone and so this cannot be a factor of definitive or of much weight. Factor (ii) needs to be considered in the light of the facts that this showed violence by a very angry man, who was threatening to kill his victim with whom he was or was likely to be infatuated. Turning to factors (iii) and (iv), the views of a 14 year old girl on the likelihood of a threat to kill being implemented (even if she knew of it) and her wish for Nugesse only to be warned must carry very little weight as her knowledge and opinion of the dangers confronting her cannot reasonably be relied on. I should add that I do not consider that the Coroner could or should have attached any weight to the delay by the claimant of 14 days in going to Kennington Police Station, bearing in mind the lack of experience of the claimant and Arsema in these matters in a country in which they had not lived for a long period.”

Silber J held that the police could arguably have taken steps to protect Arsema, including contacting Nugesse and assessing the risk he posed, or arresting him for assault and releasing him on bail with the condition that he could not approach Arsema. He also found that the criminal proceedings had not properly investigated the facts, because they had been focussed solely on Nugesse’s fitness to plead and the question of whether he had killed Arsema. Nor, in his view, had the IPCC report adequately discharged the State’s Article 2 obligations, because it had focussed on police conduct, and had not considered whether there had been a real and immediate risk to life or whether the police could have taken steps which would have prevented her death.

Analysis

The judge was careful to record his “admiration for the sympathetic way in which the Coroner considered the matter“, and thought that “it is quite likely that if the Coroner had had the benefit of the oral and written submissions which I have had, she would have reached the same conclusion as the one at which I have arrived“.

However, this is yet another incremental extension of the circumstances in which a fully Article 2 compliant inquest will be required. Even where there has been a murder trial, the State might still need to conduct a further independent investigation into the victim’s death. Indeed, in the key case of Middleton, as Silber J noted, Lord Bingham had said that whilst in some cases the State’s procedural obligation may be discharged by criminal proceedings “it is unlikely to be so if the defendant’s plea of guilty is accepted … or the issue at trial is the mental state of the defendant … because in such cases the wider issues will probably not be explored.”

There is good reason for this. The purpose of the Article 2 procedural obligation is to ensure that lessons are learned from any failures by the State to properly safeguard the lives of its citizens, so that the risk of tragic, horrible deaths such as that of poor Arsema occurring in future can be reduced. It can only be hoped that the full inquest will take place soon and that recommendations may be made that will prevent other young men and women suffering the same fate.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.